Senators Want WOTUS Untouched

Democrats Say 2015 Rule Brought Clarity

Some Senators want to leave the 2015 waters of the United States, or WOTUS, rule in place. (DTN photo by Chris Clayton)

OMAHA (DTN) -- A group of 20 Democratic U.S. senators and an independent senator is opposed to rescinding the 2015 waters of the United States, or WOTUS, rule, which is still tied up in court, according to a letter sent to the heads of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have proposed an interim rule that reverts to the Clean Water Act that existed prior to the finalizing of the 2015 WOTUS rule. Nearly 30 states sued to stop the implementation of the 2015 rule. The deadline for public comment is Sept. 27.

The new proposal to revert to the pre-2015 rule would be temporary, as the EPA and Corps of Engineers announced they would offer a rewrite of the WOTUS rule at a later time.

So far, the decision to revert to the pre-2015 rule has received more than 180,000 public comments, according to regulations.gov.

In a Sept. 13 letter to EPA Administrator Scott Pruitt and Deputy Assistant Secretary of the Army Douglas W. Lamont, the senators ask the agencies to leave the 2015 rule in place.

"We write in strong opposition to your proposed rule to weaken safeguards for the nation's waterways," the letter said.

"The proposed rule to repeal the 2015 clean water rule upends the many years the EPA and U.S. Army Corps of Engineers have taken to draft a rule that gave our constituents, and the cities, counties, states and businesses in which they live and work, the certainty that they need. As members of the United States Senate, we have a strong institutional interest in protecting congress' original intent to protect important water bodies throughout the United States when it passed the Clean Water Act."

Senators signing the letter were: Ben Cardin and Chris Van Hollen of Maryland; Tom Carper of Delaware; Patrick Leahy of Vermont; Dianne Feinstein and Kamala Harris of California; Richard Durbin of Illinois; Jack Reed and Sheldon Whitehouse of Rhode Island; Cory Booker and Robert Menendez of New Jersey; Bernie Sanders of Vermont; Robert Casey of Pennsylvania; Jeanne Shaheen and Margaret Wood Hassan of New Hampshire; Jeff Merkley of Oregon; Kirsten Gillibrand of New York; Richard Blumenthal of Connecticut; Ed Markey and Elizabeth Warren of Massachusetts; and Martin Heinrich of New Mexico.

"The 2015 clean water rule was created to clear up longstanding confusion over which water bodies are protected by the Clean Water Act," the senators wrote.

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"The agencies took a pragmatic approach to more clearly define which water bodies get guaranteed coverage under the Clean Water Act and which ones are exempt through using the most up-to-date science and grounding the rule's safeguards on widely accepted legal standards. The 2015 rule recognizes the necessity of protecting our nation's small streams, wetlands and other critical waters, including streams that feed into the drinking water sources of 117 million Americans.

"After years of uncertainty created in large part by the conflicting Riverside, SWANCC, and Rapanos Supreme Court decisions, our constituents finally had a definition driven by science and not by the courts."

EPA REVIEW

In March, Pruitt signed a document that launched a review of the WOTUS rule that may lead to removing the so-called "significant nexus" test.

Agriculture and other industry groups along with state governments across the country, alleged the WOTUS rule expanded federal jurisdiction on waters not traditionally protected by the Clean Water Act.

Critics of the rule said the definition of navigable waters was expanded in the WOTUS rule to include ditches, puddles and even dry areas where there was evidence of water previously.

Those areas, the Obama administration's EPA contended, should be considered waters of the U.S. because they are linked to streams, rivers and other traditional navigable waters by a so-called significant nexus.

Pruitt has indicated the agency will consider the interpretation of the term navigable waters as stated by the late Supreme Court Justice Antonin Scalia in the Rapanos ruling.

The 2006 Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water.

The Supreme Court disagreed with the lower court, and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

"In applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers and culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term 'waters of the United States' beyond parody," Scalia wrote.

"The plain language of the statute simply does not authorize this 'land is waters' approach to federal jurisdiction."

The EPA and Corps of Engineers are planning a series of teleconferences this fall for stakeholder industries and groups to offer their recommendations on how to define "waters of the U.S."

Among those 10 teleconferences will be one specifically for agriculture on Oct. 17.

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Todd Neeley

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